A
wife’s partial preliminary hearing testimony about a domestic violence incident
should have been admitted at her husband’s trial, even though it was stricken
after she asserted her privilege against self-incrimination, this district’s
Court of Appeal ruled yesterday.

Justice Steven Perren,
writing for Div. Six, rejected the contention of prosecutors that once the
testimony was stricken, it in essence no longer existed and could not be used
to contradict statements Miguel Angel Corella Jr.’s wife made immediately after
the incident that led to his trial on a charge of inflicting corporal injury on
a spouse. Perren, whose opinion was joined by Justice Paul Coffee and Presiding
Justice Arthur Gilbert, said Santa Barbara Superior Court Judge Rick Brown
erred in excluding the evidence.

Corella’s wife called
911, telling an operator her husband had hit her, and repeated the allegation
to a police officer and medical personnel who responded to the report. But at the
preliminary hearing, she instead claimed she had fallen while playing with her
son near a Jacuzzi.

The statements she made
at the time of the fall, she said, were untrue and made out of fear her husband
was going to leave her.

Since that could have
been a self-incriminating admission of falsely reporting a crime, the jurist
conducting the preliminary hearing interrupted her testimony and appointed
counsel to represent her. When the hearing resumed the next day, she followed
the appointed lawyer’s advice and invoked the Fifth Amendment.

The partial testimony
was stricken, and Corella’s wife did not testify at trial. He was convicted
based on the statements his wife had made to police and the 911 call, which was
played for the jury.

Brown abused his
discretion by rejecting Corella’s bid to introduce the stricken testimony, Perren
explained, reasoning that it was made admissible by Evidence Code Sec. 1202.
That section provides that “[e]vidence of a statement or other conduct by a declarant
that is inconsistent with a statement by such declarant received in evidence as
hearsay evidence is not inadmissible for the purpose of attacking the
credibility of the declarant though he is not given and has not had an
opportunity to explain or to deny such inconsistent statement or other
conduct.”

Once the earlier hearsay
statements were admitted, the partial testimony became admissible under that
section, Perren said.

Though striking the
testimony may have made it no longer “testimony,” it did not make it
inadmissible for all purposes, as prosecutors contended, Perren declared.

“Striking Mrs. Corella’s
testimony does not mean the words were not spoken,” the justice wrote. “They
were. Corella had the right to present the words to the jury for its consideration
of the truth of Mrs. Corella’s earlier words. Mrs. Corella gave two versions of
the events. By not admitting her preliminary hearing statement, the jury heard
only the version proffered by the prosecution.”

The error was
prejudicial and required reversal of Corella’s conviction, Perren said.

But the justice rejected
Corella’s contention that the 911 tape and his wife’s statements to the
responding officer should have been excluded. Both came within Sec. 1240’s
hearsay exception for spontaneous statements, and neither was made inadmissible
by the U.S. Supreme Court’s ruling this year in +Crawford v. Washington,+ 124 S.Ct. 1354, he said.

In Crawford, the high court ruled that the
admission of “testimonial” statements by an unavailable witness violates a
defendant’s Sixth Amendment right to confrontation.

Though he noted that the
high court in Crawford “chooses
not to define” the circumstance under which statements elicited from a witness
by police are testimonial, Perren said the analogy the justices drew to
official pretrial examinations of suspects and witnesses by English justices of
the peace before England had a professional police force suggested that “under Crawford, a police interrogation requires
a relatively formal investigation where a trial is contemplated.” He pointed
out that the statement considered in Crawford
was recorded, and the Supreme Court concluded it was “knowingly given in
response to structured police questioning.”

Perren observed:

“[I]t is difficult to
identify any circumstances under which a section 1240 spontaneous statement
would be ‘testimonial.’ The rationale of the spontaneous statement exception to
the hearsay rule is that the utterance must be made without reflection or
deliberation due to the stress of excitement—.Mrs. Corella’s statements were
ultimately used in a criminal prosecution, but statements made without
reflection or deliberation are not made in contemplation of their ‘testimonial’
use in a future trial.”